LITTLE ROCK — Arkansans will vote this year on a ballot issue that proposes limits on certain civil lawsuits, a topic that has been debated by state lawmakers for years but now is in the hands of the public.
In 2003, the Legislature and then-Gov. Mike Huckabee approved the Civil Justice Reform Act, which put a $1 million cap on punitive damages in civil suits, limited who could testify as an expert witness, limited evidence of medical costs and allowed defendants to reduce their liability by naming “non-parties at fault.”
The law was a response to a $78 million judgment against a Mena nursing home in a resident’s death, a judgment that the Arkansas Supreme Court reduced to $26 million.
In a series of rulings, the state Supreme Court struck down the law’s major provisions. The court said the Legislature had exceeded its authority and invaded the powers granted by the state constitution to the Supreme Court to prescribe rules of pleading, practice and procedure for Arkansas courts.
In the wake of the rulings, legislators who support imposing limits on civil suits, or “tort reform” as proponents call it, made several efforts to refer a constitutional amendment on the matter to voters, without success. But earlier this year, a citizen-initiated ballot proposal on the topic was certified for the November ballot.
If approved by voters, Issue 4 would amend the state constitution to require the Legislature to set a cap on non-economic damages, such as damages for pain and suffering, at no less than $250,000 in a civil suit against a health-care provider. The proposed amendment also would limit attorneys’ contingency fees in medical-injury suits to one-third of any award or settlement, after litigation costs are deducted.
The measure would direct the state Supreme Court to adjust the cap on damages for inflation every years two years. It also would allow the Legislature to adjust the cap by a two-thirds vote in the House and Senate, as long as it is not lowered below $250,000.
The issue has pitted medical providers against lawyers, advocates for nursing home residents and the Christian conservative Family Council Action Committee. Nursing homes and doctors have provided much of the funding in support of the measure, while lawyers have provided much of the funding to oppose it.
Two groups that oppose Issue 4, including one created by the Arkansas Bar Association, have filed separate lawsuits seeking to have the measure stricken from the ballot.
Opponents allege the measure’s ballot title contains numerous flaws, including failing to define “non-economic damages” and other key terms, and that supporters failed to follow laws regarding the use of paid canvassers, such as a requirement to obtain background checks for them.
If the suits fail, voters will get to decide whose arguments they agree with. Supporters say limiting damages in medical suits would be good for Arkansans because it would lower health-care costs.
Health Care Access for Arkansans, the sponsoring group, has noted that last year the U.S. Chamber Institute for Legal Reform ranked Arkansas 41st in the nation for the friendliness of its lawsuit climate to businesses.
“A higher rate of lawsuits raises health care costs for everyone, keeps doctors and specialists from moving to our state, and compels existing ones to leave. It’s simple: through higher prices and reduced access to care, Arkansans pay the price for predatory lawsuits,” the group’s website states.
Martha Deaver of the Committee to Protect AR Families has said, “While the corporate nursing home owners and their lobbyists succeeded in placing a constitutional amendment on this November’s ballot that would give corporate nursing homes a free pass to abuse and neglect the elderly, I am confident that Arkansas voters will see through this scam and vote it down.”
Jerry Cox, executive director of the Family Council Action Committee, has said, “This amendment leaves too many opportunities for nursing homes to neglect residents and get away with it. If a grandmother with dementia dies in a corporate nursing home because the facility is under-staffed and neglects her care, our current system punishes the facility financially. I really think the possibility of being sued and being forced to pay expensive damages motivates some facilities to provide good care.”
The election will be Nov. 8.